Civil Society and National Human Rights Institutions

Foreword

Commonwealth Human Rights Initiative (CHRI) works for the practical realization of human rights in the lives of ordinary people in the Commonwealth. This report, CHRI’s eleventh to the biennial Commonwealth Heads of Government Meeting (CHOGM), is a natural progression from previous reports which suggested practical means by which many governance and justice challenges in the Commonwealth can be overcome. Civil Society and National Human Rights Institutions encourages close cooperation between national human rights institutions (NHRIs) and civil society. It has been deliberately designed to be a constructive point of engagement for improving the relationship between NHRIs and civil society. The report makes practical suggestions on how engagement can be utilized and has been optimized in the past to enhance the promotion and protection of human rights in the Commonwealth.

CHRI has always advocated that the Commonwealth is about human rights or it is about nothing at all. Unlike other intergovernmental organizations, the Commonwealth has neither a universal membership nor a geographic, thematic, military or economic focus to define its central purpose. Instead, the Commonwealth, which emerged in the spirit of post-colonial ideals such as freedom and democracy, has only a set of values around which to organize itself and build its identity.

Despite the many protestations of the Commonwealth and its member states that human rights are central to the organization’s core beliefs – and the oft-repeated assertion that the Commonwealth is as much an association of peoples as it is an intergovernmental organization – the reality of the majority of people living in the Commonwealth demonstrates a paucity of rights and justice. This, CHRI believes, is due in large part to the failure of Commonwealth governments to create environments where everyone can realize and exercise guaranteed human rights. It is also a result of the Commonwealth’s “consensus” approach which has kept the organization silent on major human rights violations in member states, resulting in several missed opportunities to transform the soaring rhetoric of the Commonwealth Heads of Government Meeting (CHOGM) communiqués into action.

To its credit, the Commonwealth has nurtured some non-confrontational approaches to address the human rights of its roughly two billion people. It has done so, for example, through its leadership in debt reduction, by impelling member states to sign the Convention on the Elimination of All Forms of Discrimination Against Women, and through its encouragement and practical assistance in setting up national human rights institutions in member states.

There are now well over thirty NHRIs in the Commonwealth. It is this report’s assertion that, while the establishment of an NHRI should be applauded, the body cannot effectively fulfill its mandate in isolation. NHRIs and civil society must work together, where mutually beneficial, to advance each other’s work and the ultimate goal of improving human rights.

The Commonwealth needs to do all it can to catalyze support and assist in making this happen. The Commonwealth Heads of Government should encourage and promote engagement by giving the Commonwealth Secretariat a mandate to build cooperation between NHRIs and civil society. This would present a chance for Commonwealth realities to lean closer to the Commonwealth’s fundamental values of human rights, but also make good on the multiple CHOGM statements urging that civil society engagement be mainstreamed into all of the Commonwealth functions and activities.

1. The Commonwealth Context: Rights Unrealized

The potential of the Commonwealth to champion human rights exists in stark contrast to the reality lived out by the majority of its people. In this context, when governments falter in the promotion, protection, and realization of human rights, national human rights institutions and civil society can, when working together, be a formidable force in moving the Commonwealth and its member states towards compliance with the organization’s fundamental political principles, which include human rights and democracy.

The Harare Declaration

The Harare Declaration, frequently referred to as the Commonwealth’s “mission statement,” was laid down by the Commonwealth Heads of Government at the conclusion of their biennial meeting in 1991.2 The Declaration defines the core values of the Commonwealth and espouses protection and promotion of “democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government; [and] fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief.”3

As the Commonwealth marks the twentieth anniversary of the Harare Declaration, it is no secret that many Commonwealth governments have been unsuccessful in carrying out its mission. Across the Commonwealth, examples of violations of basic human rights can be found at the domestic and international level.

Soul Searching

Sensing that the Commonwealth was in danger of losing touch with its raison d'être, in 2009 the Commonwealth Heads of Government established an Eminent Person’s Group (EPG) to “undertake an examination of options for reform” through which the Commonwealth could transform itself into a global body with renewed relevance for the twenty-first century. Also up for self-review was the Commonwealth Ministerial Action Group (CMAG), a body which has the power to suspend or eject members of the Commonwealth if they seriously or persistently violate the principles of the Harare Declaration. To date, CMAG has chosen to interpret its mandate narrowly, meaning that it has only suspended member states which experienced unconstitutional overthrow of government, and has not taken to task those regimes that consistently violate the human rights of their populations. Hopefully, the culmination of both the reviews at the 2011 Commonwealth Heads of Government Meeting in Perth will lead to a refocusing on the active defense of values to which the Heads of Governments have repeatedly affirmed allegiance – human rights and democracy.

At the domestic level, in too many places, grinding poverty and endemic corruption, coupled with degraded environments and poor governance, ensure that the possibility of ever enjoying fundamental human rights, let alone living in dignity, remains remote for many Commonwealth people. Torture, rape, illegal detention, appalling prison conditions, and death in custody are all too frequent. Widespread impunity means that justice often remains inaccessible and illusive. Furthermore, fear of terror and uncertain threats have allowed easy passage of draconian laws that eat into guarantees of due process. The steady contraction of civil society space in various corners of the Commonwealth on the excuse of national security includes: limits on freedom of speech and access to information; intolerance for dissent; overzealous police reaction to peaceful protests; and disregard for the work of human rights defenders. Basic equality for women and minorities remains unrealized, while discrimination persists. The litany goes on, but is too well documented elsewhere to be rehashed here.

In their role as members of the international community, Commonwealth countries have also underperformed in furthering human rights. For instance, the behavior of member states at the United Nations Human Rights Council suggests that these countries place more importance on deflecting attention from their own poor human rights records and those of allies, than actually advancing human rights.4

The promotion, protection, and realization of human rights rely on several factors. They range from socioeconomic conditions – such as economic inequality, the vibrancy of civil society, and societal awareness of human rights and attitudes towards them – to the ability and resources of the government to govern well – for example, through the drafting of proper standards, and the implementation of policies and procedures to carry out those standards in practice. Most important, however, is the government’s consistent determination to respect human rights and adhere to democratic governance. Political will is manifested at the very least by the presence of an accountable executive, committed legislature, independent judiciary, honest and transparent bureaucracy, and a free media.

In the survey undertaken for this report, eight civil society organizations (CSOs) responded to a question about their expectations for the Commonwealth by noting disappointment with the Association on two fronts. First, the Commonwealth had lost its former reputation as a leader on human rights,5 and second, the Commonwealth needed to do more work with civil society, through capacity-building, training, and engagement.6 As one civil society actor put it, “human rights promotion and protection is a partnership issue.” 7

In practice, these ideal conditions and the ideal institutions that demonstrate their existence do not permeate through all the countries of the Commonwealth. However, the increasing number of new national human rights institutions that have been created or existing ones that have been strengthened is a sign that Commonwealth governments see that human rights governance needs improvement and that political will does exist to do something about it.

NHRIs are primarily set up to promote and protect human rights. The upholding of international and domestic human rights standards is the responsibility of the state, and, while the establishment of well-functioning NHRIs is not a sufficient guarantee that human rights norms will be upheld, they can be complementary to the functioning of other democratic institutions. In countries with well-established rights cultures, an NHRI is a welcome addition to ensure that human rights are upheld to the highest standards and implemented through a comprehensive and holistic approach. In other countries, effective NHRIs are a necessity to aid in the prevention of egregious violations.

A Nod from the Human Rights Council

In June 2011, the UN Human Rights Council in Geneva passed a resolution that affirmed the important role of NHRIs in promoting and protecting human rights at the domestic level and at the UN. The resolution encourages member states to establish NHRIs that are compliant with international standards and likewise encourages those with already established NHRIs to strengthen them.8 This was the Human Rights Council’s first resolution to focus specifically on NHRIs’ work and was co-sponsored by more than 110 states across all regions.9

This report examines thirty-four Commonwealth jurisdictions that have created institutions for the express purpose of promoting and protecting human rights, many of which came into being with the Commonwealth Secretariat’s encouragement, technical support, and expertise. Most were set up after the 1993 World Conference on Human Rights in Vienna, which called for the engagement of the international community to support and facilitate the establishment and strengthening of NHRIs and the adoption of international standards for NHRIs by the UN General Assembly later that year. The Vienna Declaration and Programme of Action recognized that “it is the right of each State to choose the framework which is best suited to its particular needs at the national level.”10

There are several models of NHRIs among those that have been surveyed in this report. Most are multi-member commissions with mandates that allow them to deal with a broad swath of human rights issues and violations, as is the case in India. Others are one-person ombudsman institutions which have evolved from focusing solely on the fairness and transparency of public administration to include a human rights mandate, as in Jamaica. Still other models are mixed, like the Ghanaian Commission on Human Rights and Administrative Justice, which is a multi-member institution vested with the power to protect and promote human rights and to address the misuse of power by public officials. Elsewhere, institutions concentrate on specific themes, such as equality and discrimination, as in Canada.

An NHRI’s mandate and powers may vary according to the model on which it is based. Typically, however, an NHRI will monitor state institutions for compliance with human rights norms; report on patterns of violation; educate officials and the public at large about human rights; urge and advise its government to ratify international human rights treaties; and report to international human rights bodies on the human rights situation in-country. NHRIs with broader mandates will accept and investigate complaints of human rights violations and discrimination; protect human rights defenders; and recommend punishment for perpetrators and compensation for victims of human rights abuse.

The rapid expansion of NHRIs in the Commonwealth during the 1990s12 was a welcome development for civil society actors, many of whom had campaigned for the promotion and protection of human rights as their most central undertaking and saw themselves as natural allies of the new institutions. While civil society actors in the Commonwealth vary in form – ranging from huge trade unions to tiny community groups – a large segment of them, and those that are the focus of this report, are involved in holding the government to account, fighting impunity, educating the public, training public officials, promoting adherence to international best practices, monitoring and publicizing human rights violations, shaping legislation, and campaigning internationally for the creation and ratification of international human rights treaties.

Over time, civil society’s early optimism on the potential of NHRIs has, in many cases, turned to disappointment. While some Commonwealth NHRIs are accused of acting as mere window dressing for rights-violating states, others face criticism for operating hesitantly, bowing to government influence, pulling their punches on serious issues, and failing to take measurable steps to realize their mandates.13 On the other hand, NHRIs have questioned the capacity, commitment, and politics of CSOs. Plagued by misguided preconceptions about each other, both sides often shy away from substantial engagement with one another. The result is a loss of opportunity for collaboration to embed a genuine culture of human rights within the member states of the Commonwealth. Both NHRI mandates and civil society goals would be better served if the two would mend fences and work together.

2. International Standards: A Bridge Too Far?

Global, regional, and Commonwealth standards, guidelines, and recommendations on NHRIs recognize that human rights are furthered when civil society and NHRIs work in tandem.

The most important international standards relating to NHRIs are the Principles Relating to the Status of National Human Rights Institutions, known as the Paris Principles. Adopted by the UN General Assembly in 1993, the Principles provide a normative framework to steer the creation and functioning of NHRIs. In laying out minimum standards for the status role, mandate, composition, and functions of NHRIs, the Principles deter governments that are intent on establishing ineffective mechanisms for the sake of international acclaim and emphasize the inherent value of NHRI-civil society engagement.

“In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, [NHRIs shall] develop relations with the non-governmental organizations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas.”

Principles Relating to the Status of National Institutions (The Paris Principles)14

Many other complementary standards, guidelines, and best practices on substantive NHRI-civil society engagement have emerged out of the UN and global and regional coordinating networks of NHRIs. The United Nations Centre for Human Rights developed a handbook for NHRIs in 1995 which maintained that NHRIs “should establish and maintain contact with non-governmental organizations (NGOs) and community groups which are directly or indirectly involved in the promotion and protection of human rights.”15 The publication suggests that partnership with civil society is beneficial to furthering human rights because civil society can enhance the NHRI’s visibility in the general population, act as an intermediary between the NHRI and victims of human rights abuse who are reluctant to come forward, and serve as a pool of expertise and information to which the NHRI is not a party. The United Nations Development Programme (UNDP) and the United Nations High Commissioner on Human Rights more recently developed a Toolkit on NHRIs to be used by civil society, NHRIs, and staff from United Nations Country Teams who work with NHRIs. The Toolkit focuses on, among others, “effective strategies to harness stronger collaboration between NHRIs, government, Parliament, judiciary and civil society.”16 It strongly advocates active and continuous engagement with civil society in the creation and day-to-day functions of NHRIs.

The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), which is a Geneva-based organization with a global membership of NHRIs, also has its own standards for civil society engagement which are based on the Paris Principles. The ICC comprises four regional groupings: Africa, Americas, Europe, and the Asia Pacific. It uses NHRI-civil society engagement as an important factor in assessing the extent to which an NHRI complies with the basic standards set out in the Paris Principles and to determine the level of accreditation that an NHRI merits. The Asia Pacific Forum of National Human Rights Institutions (APF), which is the ICC’s regional grouping in the Asia Pacific region, has developed best practices on including civil society in the creation and functioning of NHRIs. In addition to setting and promoting high standards of engagement, the ICC and APF both involve civil society in their own activities and, in doing so, practice what they preach.

In contrast, the relatively young Commonwealth Forum of National Human Rights Institutions (Commonwealth Forum), established in 2007, has consistently excluded civil society groups from its operations and so denied them the opportunity to participate in the exchange of ideas at the Forum and build in-country relationships with its membership. This neglect persists despite the fact that the Commonwealth has published its own best practice guide for NHRIs,17 which reflects the need to work in close cooperation with civil society. The Commonwealth Forum’s aloofness from civil society is especially surprising given that every recent statement from the biennial Commonwealth Heads of Government Meetings lauds the work and value of civil society and human rights defenders, while exhorting governments and agencies to work closely with them.

The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights

The ICC, which has its Secretariat at the UN Office in Geneva (UNOG) and includes twenty-four Commonwealth institutions as members,18 “promotes and strengthens NHRIs to be in accordance with the Paris Principles.”19 The ICC assists countries to establish NHRIs; helps members to liaise with the UN, other international agencies, and governments; offers opportunities to cooperate and share information; builds capacity in collaboration with the Office of the High Commissioner for Human Rights (OHCHR); and assists members under threat from their governments.20 Most importantly, however, the ICC’s Sub-Committee on Accreditation assesses compliance of NHRIs against the criteria for conformity established by the Paris Principles.

NHRIs that are in compliance with the Paris Principles are granted full membership, or “A” status. This allows them full voting rights within ICC and participation rights at the UN Human Rights Council.21 Institutions that are accorded “B” status do not comply fully with the Principles or have not submitted adequate documentation to determine whether they are in fact compliant. These bodies are only granted observer status within ICC. “C” status institutions are not compliant with the Principles and likewise can only be observers.22

New Privileges for NHRIs at the UN Human Rights Council

On completion of its self-review in 2011, the UN Human Rights Council granted more privileges to NHRIs. Now, NHRIs with “A” status will have greater opportunities to speak at Council sessions and, like accredited CSOs, will be able to formally participate in the nominating process when the Council appoints experts on country situations and thematic issues, such as torture.23

An important factor in determining whether an NHRI is to be accredited or re-accredited as “A” status lies in the quality and consistency of its engagement with civil society. The ICC Sub-Committee, which accredits incoming NHRIs and re-accredits members every five years, noted in its General Observation 1.5, entitled Cooperation with other human rights institutions, that: “NHRIs should closely cooperate and share information with […] other organizations, such as NGOs, working in the field of human rights and should demonstrate that this occurs in their application to the ICC Sub-Committee.”24

The Sub-Committee requests certain information to assess whether an NHRI is compliant with the stipulation in the Paris Principles that NHRIs develop relations with civil society:

Whether the provisions in the NHRI’s founding law formalize relationships between it and civil society;

How the NHRI has developed relationships with NGOs in practice;

Which civil society groups the NHRI cooperates with (e.g., NGOs, trade unions, professional organizations, individuals or organizations espousing trends in philosophical or religious thought, universities and qualified experts, parliament, and government departments); and,

How frequent and what type of interaction the NHRI has with NGOs (e.g., workshops, meetings, joint projects, through complaints handling).25

Civil Society and the ICC Accreditation Process

During the accreditation process, the Sub-Committee invites civil society groups to make submissions about the functioning of their NHRI and their relationships with it on the ground. Indian civil society have presented detailed concerns to the ICC about the Indian National Human Rights Commission’s (INHRC) diminishing stature, ambivalent responses to rights violations, and restricted and superficial engagement with civil society.26 These allegations found reflection in a letter from the ICC Sub-Committee on Accreditation to INHRC at the end of its latest review in May 2011, which made caveats about INHRC’s “A” status re-accreditation. One caveat specifically noted that information received from civil society organizations showed that existing mechanisms through which INHRC engaged with civil society were not functioning properly. As a result, instead of being reviewed for re-accreditation in 2016 according to the normal cycle, INHRC’s relationship with civil society – as well as its appointment process and composition – will be re-examined by the ICC in early 2013.27

Beyond setting minimum benchmarks for civil society engagement among its members, the ICC sets a good example by involving civil society in its processes. The ICC’s statute notes, in Article 9, that NGOs or “any other person or institution” may be invited as an observer without voting rights to its annual general meetings in Geneva and its larger thematic biennial conferences.28 Civil society representatives have also been invited as panelists during the thematic sessions of the ICC’s annual meeting.29 At the most recent 10th Biennial Conference on Human Rights and Business and the Role of NHRIs, held in October 2010 in Edinburgh, the results of the NGO Forum informed the Conference deliberations and were welcomed in the final Declaration.30 Furthermore, the organization’s most recent “Strategic Plan identifies developing outreach to and cooperation with civil society among the ICC’s strategic priorities for the coming years.”31

Civil society presence in the ICC’s processes has ensured that the value of civil society engagement is repeatedly affirmed in the ICC’s declarations. For example, the recent 2010 Edinburgh Declaration acknowledged the “highly constructive statement [of the NGO Forum] to the Conference which enriched the debate, participants’ collective thinking and deliberations,” and called on NHRIs to “engage with organizations and stakeholders at national, regional and international levels” and to “renew efforts to work collaboratively with NGOs and civil society in implementing [their] mandates.”32

The APF, which is the ICC regional grouping for Asia Pacific, is a member organization representing NHRIs in the region. It invites civil society to its annual meetings and biennial conferences, which are the largest regular human rights events in the region.34 Civil society is also involved in the design and delivery of a wide range of APF activities, including training programs, capacity assessments of NHRIs,35 and consultations on the creation of NHRIs. The APF’s Advisory Council of Jurists, which comprises legal experts from the region, advises the APF on “the interpretation and application of international human rights standards” and makes practical recommendations to member NHRIs on a wide variety of human rights issues.36

The APF and the Association for the Prevention of Torture

The APF’s openness to engagement and collaboration with civil society is evidenced in a variety of relationships. One significant partnership involves the APF and the Association for the Prevention of Torture (APT), an international non-governmental organization which works towards a world in which no one is subjected to torture or other cruel, inhuman, or degrading treatment or punishment. In 2005, the APF and the APT collaborated on the development of Minimum Interrogation Standards. Subsequently, the two organizations built an ongoing partnership to provide expert advice and training to support NHRIs in preventing torture and ill-treatment. The collaboration led to the creation of detailed resources, including a two-stage training program on torture prevention and a comprehensive manual, Preventing Torture: An Operational Guide for National Human Rights Institutions. The partnership also facilitates discussions with NHRIs and governments in the region on implementing the Optional Protocol to the Convention Against Torture in different national settings.

The APF has produced some excellent best practices on NHRI-civil society engagement. The Larrakia Declaration, which is the APF’s founding document, was developed in conjunction with all relevant stakeholders, including civil society. It explicitly states that close cooperation between NHRIs and NGOs is essential “to ensure that human rights principles are fully implemented in effective and material ways.”37 Despite these strong foundations, some civil society representatives feel that the road to inclusion remains bumpy and tensions persist, specifically over the varying degrees of openness of the APF’s meetings during the past six years.38

Asian NGO Network on NHRIs

The APF has a civil society counterpart – the Asian NGO Network on NHRIs (ANNI).39 ANNI is a unique regional civil society network that aims at the establishment and development of “accountable, independent, effective, and transparent” NHRIs in Asia.40 It organizes a parallel NGO event in the shadows of the APF’s annual meetings and biennial conferences, to which representatives of the APF and its member institutions are invited to speak and observe. The outcomes of ANNI’s shadow event are published online by the APF. Further, because civil society organizations, like governments, are accorded observer status and speaking rights, the outcomes are presented during APF’s meeting.41 This regular and synergistic pattern of working is respectful of the individual processes of both civil society and NHRIs and is valuable in enriching each, because points of convergence, rather than parallel tracks, are built into it.

The APF’s Kandy Programme of Action (1999) lays out practical methods through which NHRIs can improve cooperation with civil society. To date, its recommendations remain the most comprehensive best practice guidelines specifically on mutual engagement between the two actors. The recommendations detail multiple entry points for an NHRI to formally engage with civil society beginning from its establishment to nearly every one of its core operations, including human rights education, complaints and investigation, public inquiries, relations with legislatures, and advising on proposed legislation.42

Separate APF guidelines developed specifically for the creation of a new NHRI urge that representatives of civil society be present on the steering committee, which “oversees the process leading towards the establishment of the national institution.” Furthermore, broad-based consultations should address cooperation between the proposed NHRI and non-governmental organizations.43

The APF’s Secretariat is also deeply involved in urging governments to establish Paris Principles-compliant NHRIs and assisting with the establishment process by holding consultations with government and civil society throughout.44 The APF undertakes extensive critiques of draft legislation on new NHRIs to ensure compliance with the Paris Principles. For example, it critiqued Pakistan’s National Commission on Human Rights Bill against the standard of the Paris Principles and the ICC’s accreditation criteria, and, inter alia, called for amendments that would ensure a transparent and participatory process for the selection of members, including the involvement of all stakeholders.

Other Regional and International NHRI Networks and Coordinating Committees

Though other networks of NHRIs and ombudsmen have not developed international standards or best practices to guide their members in engaging with civil society (as have the ICC and the APF), some best practices have emerged from their operations.

For example, a significant landmark in the growing relationship between NHRIs and civil society occurred early in 2010 when the Network of African National Human Rights Institutions45 entered into a formal agreement with the Association for the Prevention of Torture (APT) to strengthen, within three years, the capacity of NHRIs in Africa to prevent torture. The agreement would see NGO-NHRI collaboration on the sharing and supporting of best practices and the adoption of a public declaration from African NHRIs on the prevention of torture.46 In another potential example of good practice, the current Secretariat of the Network of Institutions for the Promotion of Human Rights of the American Continent plans to strengthen its relationship with civil society by establishing a social network-based communication mechanism on its website.47

Ombudsmen networks have generally not gone as far as ICC-affiliated NHRI networks to promote civil society engagement among members. However, the African Ombudsman Association has an objective “to foster affiliation and maintain liaison with […] organizations interested in the progress of Ombudsman activities and Human Rights.”48

The Commonwealth Forum of National Human Rights Institutions

The Commonwealth has its own set of suggestions for NHRIs on civil society engagement in the form of the Commonwealth Secretariat’s 2001 publication, National Human Rights Institutions: Best Practice.

The publication is clear that civil society must be a partner throughout the life cycle of an NHRI: “The establishment process, whether initiated by government or by civil society, must be transparent and include all relevant actors. It is essential that all stakeholders ‘buy-in’ to the establishment process if the NHRI is to have the trust and confidence of both government and the people.”49

A steering committee, which includes representatives from all types of civil society, is recommended by the Best Practice publication as a method by which the establishment process can be inclusive.

“It is likely that including civil society will make the establishment process more lengthy, but consultations and input from members of the public are essential for attaining public legitimacy. It will be hard to build trust if government creates an NHRI in a climate of secrecy.”50

—National Human Rights Institutions: Best Practice

After an NHRI is established, the publication notes that one of its “most important contributions [to the development of pluralistic and healthy democracies] arise[s] from the exercise of powers to: […] build bridges between government and civil society and between groups within civil society.”51 It goes on to recommend that: an NHRI’s legal mandate should enable it to work with civil society;52 the process by which commissioners are appointed to an NHRI include civil society;53 they should build alliances with civil society to increase their own accessibility and effectiveness;54 they should work in cooperation with civil society to protect human rights during conflict situations;55 and mitigate the “human rights consequences of environmental degradation.”56

Beyond these guidelines specific to NHRIs, the Commonwealth Heads of Government have affirmed and re-affirmed on paper that civil society should be a valuable partner in the quest to realize the Commonwealth’s fundamental values and to pursue its program of work. Since 1999, every one of their statements, from Durban to Port of Spain, has highlighted the importance of civil society engagement to development, good governance, and the promotion and protection of human rights.57 Among the most affirmative statements on civil society engagement, the Malta Communiqué calls for civil society to be increasingly mainstreamed into all Commonwealth activities and those of its institutions.58 In this spirit, civil society is invited to make submissions to several Commonwealth meetings, such as the Commonwealth Ministerial Action Group, the Commonwealth Law Ministers Meeting, and Commonwealth Heads of Government Meeting (CHOGM).

Surprisingly, the Commonwealth’s pledge to engage with civil society – expressed in best practice guidelines for NHRIs and in commitments by past CHOGMs – has not found replication in the creation of the Commonwealth Forum of NHRIs, nor has it been reflected in its continuing operation.

The creation of the Commonwealth Forum in 2007 was proposed at a Commonwealth NHRI meeting organized in London by the Commonwealth Secretariat. The meeting was attended by the representatives from twenty-three Commonwealth NHRIs, in addition to representatives from the UN, regional organizations such as ECOWAS and the APF, and civil society, including CHRI. At the meeting, the head of the Commonwealth Secretariat’s Human Rights Unit (HRU) at the time presented a scoping paper which proposed the creation of the Commonwealth Forum. The presentation highlighted the potential for a network to “institutionalise a framework allowing interaction with Commonwealth Heads of Government and with members of the civil society.”59 The proposal was accepted by NHRI representatives, who saw potential in a forum that would allow further NHRI access to CHOGM; create a lobby of Commonwealth NHRIs to act in defense and support of fellow NHRIs; and increase linkages among individual NHRIs, regional organizations, the UN, and civil society.60

A steering committee of representatives from the NHRIs of New Zealand, Canada, Uganda, and India met in May 2007 to hammer out the modus operandi of the Forum. It was decided that the Commonwealth Forum would be created to “support the broad objectives of promoting networking, sharing of information, experiences and best practices, encouraging countries to establish Paris Principles-compliant NHRIs, and assisting national institutions to fulfill their mandated activities.”61 The HRU was to become the new network’s secretariat. Though no civil society representatives were present at the meeting, the steering committee suggested the Commonwealth Forum could invite civil society members to other meetings as observers.62

Open Invitation

Membership of the Commonwealth Forum is open to all Commonwealth NHRIs and Ombudsmen and, unlike other NHRI networks, it is not based on accreditation status at ICC. According to a representative of the Commonwealth Forum, “[t]his allows NHRIs accredited with ‘A’ status to share good practice experiences with other NHRIs. It also encourages the latter NHRIs to move towards full compliance with the Paris Principles.”63

The Commonwealth Forum’s next meeting was held over two days just prior to the 2007 CHOGM in Kampala. The first day of the meeting was used to finalize agreements between the Commonwealth NHRIs; vote on the report of the steering committee; and establish the Commonwealth Forum of NHRIs as an informal body. Despite the initial proposal in the HRU scoping paper that the Forum institutionalize a framework to allow interaction between NHRIs and civil society, the latter was not invited to the first day of the meeting and was consequently not in attendance during deliberations on the creation of the Forum.64 In spite of the absence of civil society, the meeting’s final communiqué reiterated the main objectives of the Commonwealth Forum, one of which was to promote dialogue and interaction between NHRIs and civil society.65 On the second day of the meeting, civil society was invited in to discuss possible thematic issues with the delegates.66

In these circumstances, it is difficult to assert that the Commonwealth Forum was created with adequate civil society engagement. The most important meetings for its creation – the steering committee meeting and the closed-door meeting in Kampala at which the Forum’s establishment was finalized – were ultimately devoid of civil society participation.

The lack of initial civil society engagement during the creation of the Commonwealth Forum has ensured that subsequent engagement has also been inadequate. This was illustrated by events in the days immediately before the 2009 Trinidad and Tobago CHOGM. Before every CHOGM there is a meeting of Commonwealth civil society sponsored by the Commonwealth Foundation and known as the Commonwealth People’s Forum (CPF). In 2009, the People’s Forum included a two-day human rights assembly as well as other assemblies that addressed civil society concerns, such as democracy, governance, health, and climate change. The meeting of the Commonwealth Forum of NHRIs, which was on climate change and its effects on human rights, was held on the same days, effectively excluding several human rights and environmental groups that took part in the human rights assembly. In the end, a single thematic NGO was present at the meeting, and while other CSOs were invited to a dinner to interact with members of the Commonwealth Forum, there was no way for civil society to provide proper input into the meeting’s deliberations. An opportunity to take the best advantage of an expensive international meeting and to effectuate a broader and more inclusive platform to promote human rights was lost. Indeed, the concluding statement of the meeting did not make a single mention of civil society or the need or means to engage with it.

Besides the two CHOGMs that took place since its inception, the Commonwealth Forum has primarily met in the wings of the ICC’s meetings and conferences. There is no formalized mechanism for observation or participation by civil society at these Forum meetings. Between meetings, information about dates and agendas is not easily available. Unlike the APF’s informative website, the Commonwealth Forum’s often lacks vital information about meeting particulars and contains no information about when and how submissions can be made and, indeed, about whether they can be made at all or would be given consideration.67 This is surprising, given the concluding statement of the 2009 pre-CHOGM meeting of the Commonwealth Forum of NHRIs, which urged “Forum members, governments, NGOs and the general public to use the site as a resource for the promotion and protection of human rights in the Commonwealth.”68

NHRIs and the Commonwealth Secretariat’s Human Rights Unit

The Commonwealth Secretariat’s Human Rights Unit (HRU), which now acts as the Secretariat to the Commonwealth Forum, has done valuable work on the promotion and development of NHRIs for over twenty years.

Early in its existence, the HRU commissioned several reports on the situation of NHRIs in the Commonwealth and organized the first meetings of Commonwealth NHRIs in Ottawa in 1992 and Cambridge in 2000. It also worked to encourage and assist governments on establishing NHRIs, including, most recently, in Swaziland and Bangladesh. Taking a welcome participatory approach in Swaziland, HRU organized national consultations which included government, civil society, and leaders of local communities.69 In 2011, HRU partnered with OHCHR to organize a workshop which called on “English-speaking Caribbean countries to establish NHRIs which are compliant with the Paris Principles.”70

The HRU also works to develop the capacity of NHRIs and civil society to participate in the Universal Periodic Review (UPR) of the Human Rights Council, which provides a forum for peer scrutiny of the human rights record of every UN member country every four and a half years. The HRU provides training on the implementation and follow-up of recommendations made during the UPR. Most recently, in 2011, the HRU organized regional seminars on that topic for representatives of government, NHRIs and civil society in Bangladesh, Barbados, Mauritius, and New Zealand.

Given that most members of the Commonwealth Forum are also members of the ICC and regional networks where civil society routinely works side by side with NHRIs, there are few obstacles keeping the good practices in these networks, and in the Commonwealth’s own best practice guide, from being transferred into the Commonwealth’s own NHRI network. Their absence makes the Forum look regressive and unwilling to be inclusive when, in fact, the reasons may be based in practical limitations.

From its inception in 2007, the Forum has suffered from financial constraints and cannot with ease bring its own members to periodic meetings, let alone think of supporting civil society groups to attend. Nevertheless, as it often holds its meetings in the shadow of the ICC meetings or at CHOGM, it could, by publicizing meeting dates, locations, and agendas in advance, use the presence of ICC or CHOGM-attending civil society organizations to engage with them. Furthermore, the tiny size and slender resources of the Forum’s secretariat which is located in the Human Rights Unit of the Commonwealth Secretariat – and tasked with many other responsibilities - also creates limitations on the Forum’s ability to create layers of engagement outside servicing its own immediate membership. For the Commonwealth Forum to properly engage with civil society, it needs a secretariat that is provisioned to be effective. Finally, the busy domestic schedules and more competing international commitments have also meant that attendance at the Forum is not always a priority with its own membership. For the Commonwealth Forum to develop a lasting and meaningful engagement with civil society, it needs the funds and assistance certainly, but more than these it needs its membership to value the Forum itself sufficiently to prioritize it at the same level as the ICC and the regional networks to which they belong.

None of these obstacles are insurmountable. However, they require clear signals from the Commonwealth Secretariat of whether there exists some political will to support the Commonwealth Forum in the future. This is the key ingredient to turning the Forum into an invaluable resource for its member NHRIs and, consequently, for the nearly two billion people whose human rights are affected by its performance.

3. The Domestic Environment: Human Rights Begins at Home

International standards exhorting NHRIs and civil society to work together come from the recognition that collaboration and not isolation will bring the realization of human rights closer to fruition in national jurisdictions.

The founding laws of NHRIs in the Commonwealth reflect these standards in several ways. While some laws make clear mention of civil society engagement, others are vague. Whether or not NHRIs are mandated to engage with civil society, the national environments in which both actors work make a strong case for meaningful NHRI-CSO engagement in the Commonwealth.

NHRI Mandates

The mandates of NHRIs in Australia, Bangladesh, Cameroon, Fiji, India, Kenya, Malawi, Maldives, New Zealand, Nigeria, Sierra Leone, and the United Kingdom contain specific reference to engagement with civil society. However, in these countries mandates cast civil society engagement in different shades and every mandate is worded differently. South Asia’s laws mirror each other in phrasing the requirement to engage with civil society in broad and unspecific terms. India’s Protection of Human Rights Act, 1993 instructs the Indian commission to “encourage efforts of non-governmental organizations and institutions working in human rights.”71 The Human Rights Commission of the Maldives is similarly directed by its founding legislation to “assist and support non-governmental organizations involved in the protection of human rights,”72 but does not elucidate further. The Bangladesh National Human Rights Commission Act, which is more recent, calls on the Human Rights Commission “to encourage and coordinate the efforts of Non-Governmental Organizations and institutions working in the field of human rights,”73 as well as “to assist and advice (sic) the organizations, institutions and generally the civil society for effective application of human rights.”74

The Australian Human Rights Commission’s mandate merely states that “the Commission may work with and consult appropriate persons, governmental organizations and non-governmental organizations.”75 Similarly, the National Commission of Human Rights and Freedoms in Cameroon is mandated to “liaise, where necessary, with non-governmental organizations working for the promotion and protection of human rights and freedoms.”76 These mandates leave it to the discretion of the NHRI to decide whether it will engage or not. By contrast, the mandates of other NHRIs oblige them to interact with civil society to perform their functions.

While many mandates only go as far as to instruct NHRIs to provide “encouragement” to civil society, and several mention “cooperation” as important, others speak of the need to both “cooperate” and “consult” with civil society. For example, the Kenya National Commission on Human Rights’ mandate77 requires it to “encourage the efforts of other institutions working in the field of human rights and cooperate with such other institutions for the purpose of promoting and protecting human rights in Kenya.”78 The New Zealand National Human Rights Commission is mandated to “consult and cooperate with other persons and bodies concerned with the protection of human rights.”79 This latter responsibility is identical to the Fiji Human Rights Commission’s mandate.80 In a slightly different characterization, the National Commission of Human Rights in Sierra Leone is required to achieve “effective cooperation.”81 These mandates do not explicitly compel NHRIs to set up structures and take specific actions to institutionalize relationships with civil society. However, the duty to consult does suggest the necessity of putting in place mechanisms to establish cooperative relationships.

The mandate of the Equality and Human Rights Commission (EHRC) in Britain, for instance, contains several provisions that instruct it to “consult” with civil society.82 With regard to the formulation of its strategic plan, the EHRC has a three-fold duty to: consult with civil society, allow civil society to make representations, and take those representations into account.83 To fulfill its statutory obligations, it has a process in place that allows civil society to input into its strategic plan for 2009-2012, which includes online submissions, focus groups, and meetings.84

Mandated Improvement

Following years of political interference and wavering legitimacy, Nigeria’s government adopted an Act in February 2011 to amend the Nigerian Human Rights Commission’s mandate. This new and improved mandate safeguards the Commission’s autonomy, strengthens its enforcement powers, including powers to award effective remedies for human rights violations, and affirms the importance of civil society engagement.

Adopting an almost identical provision as its predecessor, the amended Act states that the Commission shall “liaise and cooperate, in such manner as it considers appropriate, with local and international organizations on human rights with the purpose of advancing the promotion and protection of human rights.”85 A new provision also calls on the Commission, when exercising its powers, to “cooperate with and consult with other agencies and organizations, governmental and non-governmental, as it may deem appropriate.”86 These two provisions make engagement with civil society obligatory but give the Commission some leeway over the nature of its relationship with civil society.

A novel and significant addition to the Commission’s mandate is a provision for the establishment of a new Human Rights Fund, which is devoted to research, as well as “the facilitation of human rights activities of the Commission in collaboration with other human rights non-governmental organizations, civil society organizations and other stakeholders.”87

Mirroring the Paris Principles, the Malawi National Human Rights Commission’s mandate requires it to specifically “develop work relationships with non-governmental organizations devoted to protecting and promoting human rights.”88 To satisfy this statutory requirement, the Commission is obliged to create structures and specific opportunities that indicate that it is taking active steps to create and maintain a relationship with civil society actors.

While some laws, like Malawi’s, speak of engagement with “non-governmental organizations,” others, like New Zealand’s, include individuals by using the terminology: “persons and bodies concerned with the protection of human rights.” However, most mandates refer to non-governmental organizations and institutions.

In Aid of the Defender

While no legislation on NHRIs expressly refers to human rights defenders (HRD), policy and practice have evolved to place a duty on an NHRI to protect human rights defenders.89 The UN Declaration on Human Rights Defenders (1998) defines a human rights defender as a person who “individually and in association with others” promotes and strives “for the protection and realization of human rights and fundamental freedoms at the national and international levels.”90 The Declaration recognizes the special status of HRDs and implores states to establish NHRIs as a mechanism to protect human rights and those using legitimate means to further them. This framework, endorsed by all Commonwealth governments, makes it imperative for their NHRI bodies to take on this assigned role. Owing to the nature of their work, HRDs are often under grave threat. They regularly function in hostile environments that stigmatize their work – threats to life and liberty through arbitrary arrests and detention, harassment, and violence – environments that are common in many Commonwealth countries.

Violence, intimidation, and threats often increase when human rights defenders take on politically sensitive and controversial issues. For instance in Uganda, lesbian, gay, bisexual, transgender and intersex (LGBTI) activists face egregious abuse91 and, as was in the case of David Kato, have even been killed.92 Restrictive legislation such as the Ugandan NGO Act has also brought new concerns about the future of human rights defenders in the country.93 In Malaysia, a campaign in July 2011 for electoral and political reform prompted systematic harassment by government authorities and culminated in mass arrests.94 So too in Bangladesh, human rights defenders continue to face intimidation and harassment.95 In Kenya, two human rights defenders were murdered soon after collaborating with the UN Special Rapporteur on extrajudicial killings.96 Women human rights defenders face the threat and risk of gender-based violence by government agents in certain African states.97

To maintain legitimacy, an NHRI must be vocal, proactive, and prepared to advocate the defense of HRDs – a repressive climate should prompt an NHRI to provide special assistance to defenders. The Northern Ireland Human Rights Commission, for example, monitored the Rosemary Nelson inquiry that investigated the murder of prominent human rights lawyer, Rosemary Nelson.98 In another example, following the subsequent arrests and harassment by state authorities of protestors in July 2011, SUHAKAM, the Malaysian National Human Rights Commission, plans to carry out an inquiry to investigate allegations of police brutality while dealing with activists.99

NHRIs can also be a rich resource for HRDs to receive information on international human rights norms and domestic, regional, and international human rights protection mechanisms. Additionally, in their role as advisors to governments, NHRIs can also review legislation to ensure that it facilitates an enabling environment for HRDs’ work.

Another way for an NHRI to aid HRDs is through the creation of a “focal point person” – a recognized best practice100 – to adhere to the urgent and specific needs of human rights defenders. Commonwealth NHRIs, including those in India, Sri Lanka, Kenya, and Uganda, have appointed focal point persons on human rights defenders.

Yet the mere appointment of a focal point person is inadequate. For example, the UN Special Rapporteur on Human Rights Defenders observed during a visit to India in 2011 that despite the creation of a focal point person within the INHRC, it lacks “sufficient prominence within the Commission.”101 An Indian human rights defender has also noted that the focal point person in the INHRC fails to respond with urgency to complaints of alleged abuse against human rights defenders.102

Ideally a focal point person must go beyond acting as a separate complaints-handling cell to monitor and report on concerns relating to HRDs, prompt investigations, and where possible, even initiate legal procedures on behalf of HRDs.

Put It on Paper

The level of enthusiasm with which civil society approaches its NHRI in the Commonwealth often depends on the personalities at its helm. Strong infirmities in the design of succession impact engagement patterns, as in the case of India, where only Chief Justices can lead the Commission, and in single-member ombudsman offices, where the individual is the office. In the long run, a rise and fall in engagement with civil society can be extremely detrimental to public ownership of a national human rights body. NHRIs must therefore espouse civil society partnerships from the very start in the mandate itself, to counter depredations that mar the office of an NHRI.

Most mandates of Commonwealth NHRIs make no mention of civil society at all, as in the mandates of NHRIs in Antigua and Barbuda, Barbados, Belize, Canada, Cyprus, Ghana, Jamaica, Malaysia, Mauritius, Namibia, Northern Ireland, Rwanda, Papua New Guinea, St. Lucia, Seychelles, South Africa, Sri Lanka, Swaziland, Tanzania, Trinidad and Tobago, Uganda, and Zambia. However, there are instances where, though no mention of civil society engagement is made within the mandate, NHRIs have worked with civil society on their own initiative to further mutual agendas. For example, the mandate governing the Commission of Human Rights and Administrative Justice (CHRAJ) in Ghana is silent on civil society engagement. Nevertheless, CHRAJ takes interaction with civil society seriously and has established an NGO forum that meets quarterly, which registered NGOs can join.103

The Northern Ireland Human Rights Commission created a Human Rights Practitioners Group comprised of advice workers, equality officers, solicitors, and academics. This informal Group holds quarterly meetings to deliberate on human rights concerns.104

Notably, none of the mandates of Commonwealth ombudsmen, who have responsibilities to promote and protect human rights, make reference to civil society engagement and, in practice, few seem to view it as a priority. An exception is the Ombudsman in Namibia. In fact, despite the absence of instruction from domestic legislation, the Namibian Ombudsman set up the Ombudsman Human Rights Advisory Committee, which comprises civil society actors, including NGOs and faith-based organizations. The Committee meets monthly to discuss and strategize on emerging human rights concerns.105

Whether mandates do or do not explicitly require NHRIs to engage with civil society, challenges can obstruct the actualization of this desirable practice. These include differences in the nature and organizational structures of both CSOs and NHRIs, their perceptions about each other, and the environments in which they function.

NHRIs and Civil Society: Mutual Perceptions and Inhibitions

While created by the state and supported by it, an NHRI is a sui generis body that is required to be independent of political interference. Its statutory origins provide it with formal authorization and powers to hold the state to account as well as to act as a public advocate that furthers the human rights agenda. On the other hand, civil society, by its very nature, is self-defining, self-mandated, voluntary, and self-propelled. Its strengths come from its ubiquitous formal and informal presences at different levels of society and sometimes fluid and adaptable structure.

Situations and circumstances surrounding both NHRIs and civil society can inhibit engagement between the two parties. Civil society actors frequently cite their reservations about working with NHRIs because, inter alia, they sometimes perceive them as negatively motivated entities propped up by the state or guarded by its agents; lacking in ability, commitment, and/or resources; and overcautious in responses to human rights violations. On the other hand, the large number and variety of civil society actors sometimes causes NHRIs to be reasonably cautious about with which actors they want to engage. NHRIs can be aloof about their involvement with civil society groups because they sometimes perceive them to be politically partisan, prone to inaccurate or exaggerated reporting of violations, too confrontational, lacking in adequate expertise themselves, and unrepresentative or driven by external/donor agendas.

Looking for Legitimacy

Sometimes civil society will isolate itself from an NHRI because it does not view the NHRI as legitimate. In 2006, the President of Sri Lanka directly appointed the Commissioners of the Human Rights Commission of Sri Lanka, in clear contravention of the national Constitution and the Paris Principles. The Commission’s consequent lack of political independence severely inhibited its engagement with civil society and impacted its image in the international arena. In 2011, the report of the UN Secretary-General’s Panel of Experts on Sri Lanka noted that while the Commission “could potentially contribute to advancing certain aspects of accountability,” it had “serious reservations and believes that the Commission will need to demonstrate political will and resourcefulness in following up on cases of missing persons and in monitoring the welfare of detained persons.”106 Most Sri Lankan civil society actors chose to disengage themselves completely from the Commission, as they perceived it to be an unconstitutional and illegitimate body. In 2007, the ICC declared the Commission non-compliant with the Paris Principles and as a result, downgraded it to “B” status.

In the same year, following the military coup in Fiji, the ICC suspended the Fiji Human Rights Commission’s “A” status, inter alia, owing to its open support of the coup and its justification of human rights violations on account of the State of Emergency.107 The Commission consequently resigned from the ICC. Additionally, the Commission has been admonished for its criticism of Fijian human rights NGOs, its request for increased governmental scrutiny of NGO activities and funding, and for publishing confidential email exchanges about the country’s political situation between Fijian NGOs and newspaper publishers.108 Having lost its credibility, independence, public support, and capacity and will to engage with civil society, the NHRI has been virtually rendered ineffective.

Even under the very best of circumstances, concerns about co-option, retention of functional autonomy, and independence of action mean that both civil society and NHRIs too often approach each other gingerly for fear that engagement may verge on encroachment.

Perceptions aside, inevitably the effectiveness of both an NHRI and civil society actors to further human rights depends greatly on the environment in which both exist. For every jurisdiction that is progressive, accommodating, and responsive to human rights, NHRIs, and civil society, there are several others where governments are unenthusiastic about human rights work, whether it is undertaken by civil society or the NHRI.

The Creation of NHRIs

Motives to create NHRIs vary. Some developed Commonwealth member states have set up their NHRIs by consolidating several offices with similar roles into one. Frequently, these NHRIs take on the form of equality commissions, which deal with problems of discrimination and inequality. For instance, the creation of the Equality and Human Rights Commission in Great Britain consolidated three previously existing bodies dealing with race relations, gender equality, and disabilities.109

Several other NHRIs have come into being as part of large national transitions. The South African Human Rights Commission was established following its post-apartheid “constitutional moment.” The Malawi Human Rights Commission was likewise created during its transition to democracy following thirty years of authoritarian rule. Sierra Leone and Northern Ireland established their NHRIs as a result of peace agreements after long periods of internal conflict.

In certain Commonwealth countries, pressure from the international community – including governments, donors, international human rights groups, and international and regional human rights monitoring and enforcement mechanisms – has pushed reluctant governments to create NHRIs in order to temper disapproval and condemnation. India was spurred into creating its National Human Rights Commission after a damning report on torture, rape, and death in custody pointed out endemic violations across the country.110 Malaysia felt compelled to set up SUHAKAM only after it became a member of the erstwhile UN Commission on Human Rights, despite the fact that civil society had agitated for a national human rights mechanism for years.111

Once in place, the NHRI – as a unique body created by the state but charged with taking state actors to task – occupies a precarious space.112 While the creation of an NHRI suggests that a state consents to scrutiny, in reality governments are reluctant to submit to this level of accountability. Defensive governments can and do use their control over NHRIs’ design and appointments to weaken them from the very beginning or frustrate them if they become too outspoken. For example, in 2006, the Executive Secretary of the Nigerian National Human Rights Commission, Bukari Bello, was sacked for voicing his opposition to government policies and actions, including the arrest and detention of a journalist by state authorities. Finances are a perennial problem for most states, but tightened purse strings that have little to do with national financial constraints also signal a sharp response to growing displeasure with an institution. An NHRI’s realization that it is ultimately dependent on the government can likewise act as a continuing rein on its willingness to take it on with even mild admonishments.

“[Government] has a tendency to exercise authoritarian power and does not still fully appreciate the significance, meaning and essence of an NHRI. It often confuses the NHRI with the various other institutions that exist and forgets the body’s unique role and position and international significance.”113

While NHRIs are often under scrutiny from governments for daring to perform, this pressure is also channeled against civil society actors whom they perceive to be too vociferous in furthering human rights. Governments challenged by dissent, embarrassed by criticism, or defensive about violations, frequently restrict civil society functioning through unreasonable registration regimes; limited access to funding; arbitrary arrests and detention; and draconian laws that hinder the rights to expression, assembly, and association.114

Nevertheless, engagement is perhaps all the more valuable and rewarding when done in the face of constraining environments. Nigeria’s Human Rights Commission (NHRC) was created to assuage international criticism of Nigeria’s military government and, in its formative years, had little legitimacy with civil society. At the same time, human rights defenders were under persistent threat from the government, and arbitrary detention and harassment executed by government agents became rampant. In a bid to overcome state intimidation, human rights actors chose to engage with NHRC, however illegitimate they perceived it to be. Working with NHRC, which had access to the African Commission for Human and Peoples’ Rights – a regional human rights mechanism – became a means to profile the human rights situation in Nigeria. Most importantly, however, the government found it difficult to inhibit the work of civil society actors who engaged with NHRC.

Even in more secure environments with established democratic space, a symbiotic relationship is more effective than working in isolation. In Australia in 2006, a nationwide campaign to improve healthcare for indigenous people was triggered by collaborative action between the NHRI and civil society.115 Earlier in the year, the Australian Human Rights Commission (AHRC) had published a report that revealed gross inequalities in healthcare for Aboriginals and Torres Strait Islanders compared to the rest of Australians.116 To compel the government to respond, the AHRC formed the “Close the Gap Coalition,” an umbrella group of over forty organizations, including Australians for Native Title and Reconciliation (ANTAR), the National Aboriginal Communities Controlled Health Organization (NACCHO), and Oxfam Australia.117 The joint movement successfully prompted the government to make a series of commitments, including a boost in funding, to remedy indigenous health inequities.118 The Close the Gap Coalition continues to monitor and report on the progress of this initiative.

4. Developing Partnerships: Practice Makes Perfect

Engaging from the Beginning

The relationship between NHRIs and civil society is most effective when civil society plays a role in the creation of an NHRI. Pluralism and participation of the largest numbers of stakeholders throughout an NHRI’s establishment and continued existence can strengthen it and minimize the possibilities of interference by vested interests of the state. Furthermore, adequate and meaningful engagement also demonstrates and satisfies the fundamental democratic value of participation that is central to the Commonwealth.

The larger the number of stakeholders connected with the creation and operation of an NHRI, the easier it is for the NHRI to modulate the negative reactions of the political executive. Such reactions are often present in a process where the government of the day creates an agency whose primary function is to monitor its performance in a subject matter that goes to the very heart of the state’s legitimacy.

Broad-based consultation processes facilitate the spread of knowledge about the institution into the public at large. Wide consultations at the outset help shape the new institution, refine debates around contentious issues, and transfer ownership of the institution from the government’s hands to the communities it is to serve. When the need arose to form a statutory body to advocate human rights concerns, expand the democratic space, and advocate freedom of fundamental rights, the Kenyan National Commission on Human Rights (KNCHR) was created in 2003, following immense pressure from civil society actors in Kenya and a large dose of assistance from the United Nations, and specifically the Office of the High Commissioner on Human Rights. The participation of civil society actors in the creation of KNCHR was key in establishing the strong engagement that the body has maintained subsequently with civil society. Several of the commissioners eventually appointed to KNCHR came from civil society. Such engagement with civil society was also critical in establishing a sense of public ownership over KNCHR and furthering its legitimacy. KNCHR sees engagement with civil society as a crucial accountability mechanism. Furthermore, civil society actors in Kenya themselves view their NHRI as a strategic partner in all their initiatives.119

Such a consultation at the inception of an NHRI allows for public concerns to feed into the role and functions of the institution. However, consultations alone may not always mean that every battle is won. In India, consultations with civil society groups were not successful in including the armed forces under the purview of the Commission’s final enabling legislation, despite strong evidence that it was responsible for human rights violations. 120

The People Behind an NHRI

Every major change in the members of an NHRI can change the dynamics of civil society engagement. For this reason, the involvement of civil society must extend well beyond the creation of an NHRI into the appointment of its members.

Diversity, pluralism, and the regular and accepted involvement of civil society bring the richness of varied perspectives and expertise into an NHRI. Involving civil society early in the selection process and appointing people from a large variety of groups as Members of an NHRI are in themselves ways of habituating continuous engagement. Pluralism and diversity among the members are promoted by the Paris Principles as well as the ICC Sub-Committee’s Guidelines.121 The Commonwealth Best Practice for NHRIs states: “In addition to the strong personal and professional qualifications of the individual members, successful NHRIs are characterised by the plurality of their composition.”122 Drawing members from civil society adds to the diversity and richness of expertise of an NHRI; however, drawing extensively from civil society can also result in too close a relationship with civil society, which can sometimes obscure the boundaries that need to be maintained by an NHRI for it to work effectively with the public service.

Sierra Leone’s statutory selection panel comprises a representative of the government and a representative of each of the following umbrella organizations: the Inter-religious Council, the National Forum for Human Rights, the Civil Society Movement, the Council of Paramount Chiefs, the Sierra Leone Women’s Forum, and the Sierra Leone Labour Congress.123

The Malawian Human Rights Commission Act invites civil society actors to nominate independent, nonpartisan persons of high integrity for appointment as members of the NHRI. The Malawi Law Commissioner and the Ombudsman jointly assess these nominations and use them as a basis to make recommendations to the President for appointments.124 In Kenya, anyone in the country can nominate any qualified person to be appointed to the National Human Rights Commission. The call for nominations is widely advertised in the print media to make it a participatory process.125 This has resulted in a diverse composition of commissioners, richer by the range of experiences they bring to the job.

Inclusion of multiple interest groups helps ensure that the marginalized, the vulnerable, and even the unpopular are represented and are knowledgeable about their concerns.

Expanding the Pool

The staff composition of an NHRI defines its relationship with civil society in carrying out its functions. Many NHRIs, however, tend to take regular staff from only a limited segment of society. Heavy reliance on staff deputed from various departments of the government has, in some countries, created concern about overly government-oriented outlooks, and a lack of expertise and sympathy for the human rights regime they are entitled to serve. Similarly, concerns abound about loyalties where staff members are required to eventually return to government entities at the end of their deputations at an NHRI. These concerns can be significant where staff deputed from state security forces conduct an NHRI’s human rights investigations. The investigative staff of the National Human Rights Commission of India, for instance, is mandated to comprise primarily existing police personnel and officers from the Intelligence Bureau.126 Other staff members are also recruited from various government agencies to which they then return after their deputation period is over.127 This has had significant repercussions on the NHRI’s engagement with civil society.

Mutual Engagement for Mutual Benefit

Challenges faced by NHRIs and civil society, in the varied and sometimes difficult environments within which they function, can deter regular engagement. Yet in good or poor circumstances, both actors can accomplish their goals better by working together, because the limitations of one actor can be overcome by the strengths of the other.

Civil society may in some circumstances have better human rights expertise, skill sets, networks, and outreach. Unburdened by bureaucratic fetters, it can sometimes move faster and more effectively. Therefore, in certain circumstances, NHRIs can seek support from civil society partnerships to extend their community outreach and advocacy measures, which may otherwise be limited by financial and human resource constraints. Civil society brings with it networks, often at the grassroots level, that give access to rural areas and marginalized sections of society where the outreach of an NHRI may be limited. This can grant an NHRI crucial access to populations, regions, information, and human rights expertise to which it would never otherwise be privy. Civil society actors who are in touch with the concerns and perceptions of different cross sections of society can act as bridges between NHRIs and different communities and social echelons.

KNCHR views civil society partnerships as invaluable. In 2010, the African Commission on Human and Peoples Rights discovered that the Kenyan government had violated the rights of the Endorois, an indigenous group, by forcibly removing them from their land without prior consultation or compensation. In a campaign to promote the rights of indigenous peoples, and in particular to monitor the implementation of a ruling by the African Commission, KNCHR collaborated with several NGOs, including the Centre for Minority Rights Development (CEMIRIDE) and the Kenya Land Alliance (KLA), to urge the government to implement the ruling of the African Commission.128

Making the Most of It

Several NGOs in Bangladesh have an established profile with the public. They have many years of experience in delivering development and bettering governance at the grass roots, large financial and manpower resources, and expansive networks. In contrast, the Bangladesh Human Rights Commission is nascent. It is still in the process of setting up and mapping its role in the human rights arena, while challenged by a dearth of resources. The Commission has therefore used the expertise of established, credible NGOs in furthering its outreach to all sections of the country. In many cases of human rights violations in Bangladesh, NGOs are the first to intervene, investigate, and report preliminary findings, which the Bangladesh Commission uses as a basis to take necessary action.129

Even some single-member institutions, such as the Office of the Ombudsman in Namibia, welcome engagement with civil society. The Namibian Ombudsman is especially interested in “collaborating with civil society organizations which are closer to the ground” because they are a “source of knowledge and expertise.”130 Putting this into practice, the Office of the Ombudsman has conducted outreach programs specific to human rights in collaboration with NGOs, community leaders, and local authorities.131

Working with an NHRI also confers many benefits on civil society. NHRIs have the voice and authority of a statutory institution, with mandated access to the government. Association with an NHRI can give civil society crucial access to the decision-making bodies of the state and offer a powerful platform to analyze and advise on legislation and negotiate compliance with human rights norms. A CSO based in Namibia acknowledged that its partnership with the Ombudsman provided greater weight to its human rights concerns, “legitimising certain controversial issues”132 and precipitating a positive government response.

CSOs can also benefit from the resources and platform that an NHRI provides as a state institution. Those NHRIs that have substantial geographic reach through regional and district level offices can benefit civil society advocacy efforts. The Ghanaian Commission on Human Rights and Administrative Justice, for instance, has offices in over 100 districts of the country. As a result, Ghana’s civil society finds the Commission to be a strategic partner to enhance its advocacy and awareness efforts.133

Formal Platforms

Unfortunately, much of the engagement between NHRIs and civil society is ad hoc. It is usually limited to workshops, training programs, seminars, and human rights advocacy initiatives. In the absence of formal platforms and processes for long-term engagement, these initiatives may be seen as temporary or implying tokenism. Malaysian civil society cites its consistent unmet demand for regular meetings as a challenge for further engagement with SUHAKAM.134 The nature of the engagement remains ad hoc and issue-based in Malaysia, making the implementation of outcomes difficult.

There is a strong need to establish formal platforms for engagement with civil society to ensure that it is regular and meaningful. This may mean a clearly defined framework with mutually agreeable parameters for both actors.

None of the mandates of Commonwealth NHRIs lay down a formal mechanism through which engagement can be realized. However, mechanisms were subsequently established to formalize engagement. Tanzania’s Commission for Human Rights and Good Governance, for instance, has established formal engagement through a Memorandum of Understanding (MoU) with certain CSOs. In 2007, it signed an MoU with ten NGOs (eight from mainland Tanzania and two from Zanzibar) with the aim of enabling effective participation by CSOs to monitor and report human rights violations in the country as well as to promote public awareness on human rights issues through training and other outreach programs. The MoU requires parties to combine efforts to work towards observation, protection, and promotion of all human rights norms. It makes the roles of each stakeholder clear, thereby avoiding duplication of effort.135

NHRIs in India and Maldives have established core groups focusing on thematic human rights issues.136 Individuals and experts from various CSOs have been taken on board to ensure that these platforms are used most effectively.

The establishment of formal platforms is merely the first step towards substantial and consistent engagement. Creating platforms can often become a box-ticking exercise for NHRIs, sometimes adding to the atmosphere of non-transparency and co-opted exclusiveness. For instance, a consultative forum for NGOs, an initiative of the Rwandan Human Rights Commission,137 was set up to strengthen capacity for sustained partnerships with civil society actors. The Forum convenes twice a year and has been able to encourage engagement between the NHRI and civil society actors at a very superficial level. Civil society actors may be invited to participate in the advocacy campaigns, public outreach activities, and trainings of the NHRI, but are excluded from the planning stages of these programs. While engaging through a consultative forum may be a step towards strengthening NHRI-CSO partnerships, according to civil society actors in Rwanda a more substantial approach would bolster efforts that are initiated by civil society itself with the facilitation of the NHRI.138

Occasionally, the establishment of formal platforms may prioritize engagement with certain civil society actors over others. One remedy may lie with the selected civil society actors who could hold further open and transparent consultations with other sections of civil society and gain their feedback. In this way, more comprehensive views from a larger section of civil society may be presented in these NHRI-CSO platforms.

A Partnership to Advance the Human Rights Agenda

In the Commonwealth, certain NHRIs have set a high bar in engaging with civil society in their day-to-day functions, while others have lagged behind. The following examples draw from this broad spectrum and illustrate specific ways in which NHRIs and civil society engage successfully.

Handling Complaints

Handling complaints is a primary function of many NHRIs. One of the main ways in which civil society can add value to an NHRI’s work is to bring complaints from people who cannot do it on their own. For the victim of a human rights abuse, filing a complaint can be a daunting affair, especially in places where state agencies are disproportionately powerful and populations are often poor, sometimes illiterate, and liable to reprisals. Language barriers, physical distance, an overwhelming amount of paperwork, and at times, even the misconception that an NHRI is an arm of the state can inhibit a victim from filing a complaint. Civil liberties groups, human rights defenders, health workers, environmentalists, lawyers, media persons, and others who operate in remote areas of a country and are in constant touch with ground realities play a predominant role in supporting victims and bringing their complaints to the NHRI.

Filing Complaints Made Easy

Undoubtedly, civil society plays a salient role in filing complaints – whether their own complaints or those of others. However, some NHRIs in the Commonwealth have also made efforts to ease the filing process. Though most NHRIs allow the lodging of complaints in person at the NHRI, or through telephone, email, or fax, for many complainants who have special needs or challenges, these methods can still pose difficulties. For this reason, some NHRIs have gone a step further to assist in this process. The Bangladesh Human Rights Commission, for instance, offers the assistance of its staff to people who cannot read or write.139 The Australian Human Rights Commission extends its reach to complainants by making all important information on how to register complaints available on its website140 and translating the Commission’s complaints handling role into several languages. The Mauritian Human Rights Commission has officers to assist with the filing process, including those made in the Creole language.141

Civilian Oversight in Prison Visits and Monitoring

Many NHRIs oversee and have access to places of custody. These are sites prone to police torture, extrajudicial deaths, and other human rights violations. Regulated and controlled access does not allow easy entry for civil society actors who work for prisoners’ rights or prison reform in general. Partnerships with NHRIs that have such access can open prisons to locally available community services and significantly improve the situation in these traditionally closed institutions through more regular scrutiny.

As part of its civilian oversight duties, the Foundation for Human Rights Initiative collaborates with the Ugandan Human Rights Commission on joint missions to visit prisons and host workshops.142 While conducting an inquiry on the state of police and prison reforms, the Zambian Human Rights Commission has even taken the press into prisons. In Nigeria, civil society actors participate in the prison audit of the Nigerian Human Rights Commission.143 In Kenya, the Commission developed a monitoring mechanism for human rights violations in prisons through consultation with civil society actors. It has also collaborated in its civil education program for prisoners with the Institute of Education in Democracy.144

The mandates of NHRIs in Bangladesh,145 Cameroon,146 India,147 Kenya,148 Malawi,149 Malaysia,150 Mauritius,151 Northern Ireland,152 Nigeria,153 Seychelles,154 Sierra Leone,155 Sri Lanka,156 Tanzania,157 Uganda,158 and Zambia159 specifically mention the power to monitor prisons. Similar powers can be implied in Antigua,160 Barbados,161 Belize,162 Canada,163 Ghana,164 Jamaica,165 Maldives,166 Papua New Guinea,167 Namibia,168 St. Lucia,169 South Africa,170 and Trinidad and Tobago.171 NHRIs in the countries mentioned above enjoy unconditional powers to visit prisons, except in Northern Ireland and Malaysia, where visits must be scheduled or prior permission sought from relevant authorities. Such restrictions severely weaken an NHRI’s oversight role and its ability to hold prisons accountable to human rights norms. The Northern Ireland Commission, for instance, has limited investigation powers since it has to give a period of notice and agree to the terms of reference with any public body it wishes to investigate. A representative said: “We don’t have unrestricted powers to visit places of detention…we can only formally conduct an investigation, giving the establishment we might want to investigate a couple of weeks to see our terms of reference and they have the option to challenge it through the courts.”172

Advising on Legislation

Mandates of many Commonwealth NHRIs grant them the ability to review and advise governments on proposed legislation so as to ensure its compliance with human rights norms. Consultations with civil society during this process can bring in subject expertise and provide a good picture of the impact on the ground.

One of the tasks given to the Northern Ireland Human Rights Commission (NIHRC) by its enabling legislation was the preparation of advice for the British Government on what rights could be added to the Human Rights Act passed by Westminster Parliament in 1998. These rights are to be supplementary to the European Convention on Human Rights (ECHR) and together with the ECHR would form a Bill of Rights for Northern Ireland.173 The particular circumstances of Northern Ireland, after a period of protracted conflict culminating in a peace agreement, led to the need for additional rights, reflecting the principles of mutual respect for the identity and ethos of both communities. These together with the ECHR were to be included in a Bill of Rights for Northern Ireland.174 This Bill of Rights was to help address the contemporary human rights concerns of Northern Ireland within the European Convention. NIHRC has extensively consulted civil society in these endeavors and has lobbied for the creation of a Bill of Rights through the Human Rights Consortium, an umbrella group of civil society actors.175

Despite its accession to the Convention Against Torture, the Ugandan government failed to make the rights espoused in the Convention justiciable to Ugandan citizens. In response to this failure, the Uganda Human Rights Commission, in conjunction with CSOs, proposed a draft bill that prohibited torture and ill-treatment in order to pressure the government. Though the Ugandan parliament has yet to pass the anti-torture bill, the joint approach taken by civil society and the Ugandan NHRI has lent serious domestic weight to an issue that might have otherwise been shrugged off.176

The Government of Australia recently announced its review of federal anti-discrimination legislation, which presently exists in four separate acts – the Racial Discrimination Act, 1975, the Sex Discrimination Act, 1984, the Disability Discrimination Act, 1992, and the Age Discrimination Act, 2004. The aim of the review is to consolidate all the acts into a single, comprehensive one to provide a clearer understanding of rights and obligations, remove overlaps, and mitigate inconsistencies in the acts.177 The Australian Human Rights Commission, whose functions and role stem from all four acts, has actively engaged with CSOs in this review process, through which it encourages public input. For instance, in July 2011, the Human Rights Law Centre, an Australian Human Rights NGO, conducted a conference, with active participation from the Australian Human Rights Commission, for best practice models, frameworks to promote equality and encourage informed debate on the subject.178

National Human Rights Action Plans

National Human Rights Action Plans (national plans) are a set of practical goals designed to guide the national human rights policies of a country. Governments are encouraged to develop national plans with the participation of all relevant stakeholders, including NHRIs and CSOs. The central role of these two actors in the creation, implementation, and monitoring of a national plan is strongly advocated by the Commonwealth179 and the UN180 as a means to ensure its comprehensiveness, effectiveness, and credibility.

At present, most Commonwealth countries are in the process of adopting national plans. However, very few national plans to date incorporate civil society participation sufficiently or effectively. The failure of the governments of Malawi181 and Australia182 – the first countries in the world to adopt national plans – to engage with civil society during the development of their plans is held to be one of the main contributors to their disappointing results. New Zealand‘s national plan, on the other hand, stands as an example of worldwide best practice.183 It was developed, partially implemented, monitored, and reviewed with continuous cooperation between the New Zealand Human Rights Commission and civil society. Kenya appears to have taken notice of this success and is on the verge of adopting an extremely valuable national plan. Led by the government and the NHRI, it will be the result of two years of nationwide consultations and intensive civil society participation, including a civil society working group. Additionally, a National Steering Committee composed of government and NGO representatives is coordinating and managing the process.184

Human Rights Education

In its role as a promoter of human rights, an NHRI is responsible for spreading awareness through advocacy, research and human rights education. Human rights education can inculcate a culture of human rights and empower people to bring about social change. Additionally, when one lacks awareness of one’s rights – and of mechanisms available to enforce them – the ability to claim or defend these rights is weakened. For these reasons, the Paris Principles see human rights education as one of an NHRI’s core functions and most domestic mandates include an educational role as part of the institution’s promotional capacity.

From conducting research studies, mainstreaming human rights into school curricula, developing toolkits, training, and sensitizing the public and government officials, to awareness and advocacy campaigns, there are several ways in which NHRIs execute this role. Civil society collaborations are useful in implementing and operating these programs as they further an NHRI’s outreach, and sustain programs in the long run while providing resources and expertise for this work. Collaboration is especially important when an NHRI is faced with a scarcity of funds to run these programs.

Civil society actors are usually prominent players in the spread of human rights education and public awareness. Their approach, however, may be fragmented, stemming from their varied interests and specializations. Collaborating with the NHRI adds strategic value to their programs, since the NHRI may provide a more comprehensive approach to human rights initiatives.

Following decades of sectarian turbulence, the Northern Ireland Human Rights Commission, in collaboration with Amnesty International (Northern Ireland), co-developed an educational resource on citizenship for Northern Ireland’s school curriculum. The material includes information on human rights, social responsibility, democracy, the proposed Bill of Rights, and the UN Convention on the Rights of the Child. The curriculum guide Making Rights Real was successfully piloted through several local schools by the statutory bodies that oversee the education system and is now part of the secondary school curriculum.185

Similarly, the Ugandan Human Rights Commission (UHRC) piloted and actively initiated its National Civic Education Programme (NCEP). The program is targeted at educating citizens about their rights and providing knowledge on how to fully participate in the decision-making of the country’s policies. Using the wide civic networks that may be accessed through collaborations with civil society, UHRC partnered with five CSOs during the implementation of NCEP – the Uganda Project Implementation and Management Centre (UPIMAC), the International Federation for Women Lawyers (FIDA), the National Association of Women Organizations in Uganda (NAWOU), the Uganda Joint Christian Council (UJCC), and MS Uganda.186

Joint Advocacy

One of the major challenges faced by Commonwealth NHRIs is the limitations in their ability to ensure that their recommendations are implemented. Recommendations made by most NHRIs are not binding and are made in an advisory capacity. Even though they cannot make binding decisions, NHRIs can put pressure on their governments to accept and implement their recommendations through collaborations and joint lobbying efforts with civil society actors. In its recommendations to the Human Rights Commission of Maldives, the Asian NGO ANNI flagged collaboration with civil society as a key strategy to strengthen the NHRI and add force to the recommendations it makes to the government.187 Joint action can make it tougher for a government to ignore or window-dress human rights deficiencies.

The Human Rights Commission of Sierra Leone signed an MoU with the Sowei188 Council of Sierra Leone, the Council of Tribal Heads, the District Councils, and the Advocacy Movement Network (AMNET), a human rights NGO, to abolish the practice of female genital mutilation (FGM), which has contributed to the rise in early marriage, HIV/AIDS transmission, and other negative social factors.189 In this regard, the Sierra Leone Commission and civil society worked together with local communities to successfully counter this practice in two districts in the northern region of the country.

Joint advocacy efforts may extend to raising awareness on the implementation and usage of ratified treaties. In December 2008, the Australian government ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The treaty created a communication and inquiry procedure through which the government can be held to account when failing to promote and protect rights that safeguard against gender discrimination and equality. In the following year, the Australian Human Rights Commission along with the Public Interest Law Clearing House (PILCH), a leading human rights CSO, held a joint advocacy seminar promoting the usage of the Protocol to ensure access to justice.190 Through this effort, they provided detailed information on key jurisprudence under the Protocol and explained its potential uses to promote and protect women’s rights.

Facilitated by the New Zealand Human Rights Commission, the New Zealand Diversity Action Programme (NZDAP) was set up to encourage community action on race relations. Its objectives are to celebrate diversity; promote equal enjoyment of civil, political, social, economic and cultural rights; foster harmonious relationships between diverse sections of society; and give effect to the Treaty of Waitangi – to preserve the culture of the Maori community. In the last six years, NZDAP has grown to include around 250 CSOs, taking practical initiatives to recognize and celebrate the cultural diversity of New Zealand.

Joint advocacy can lead to significant results, ranging from compensatory redress and addressing immediate concerns of victims of human rights violations, to high-level policy changes. In an effort to lobby and advocate for the rights of refugees and asylum seekers to education, the Coordinating Body of Refugee Communities in South Africa partnered with the South African Human Rights Commission to urge the Department of Education to accept refugee children into public schools. Access to the schools was previously denied as the refugee documents of these children were not accepted. The success of this endeavor led to several refugee children entering schools, with some even being provided financial assistance. Following this joint intervention, refugee documents are no longer a determining factor in school admission processes.191

As a part of its mandate to promote human rights awareness, an NHRI may often need to advocate and raise awareness on sensitive issues where collaborations with civil society actors may be constructive and invaluable in creating inroads. The South African Human Rights Commission (SAHRC), in collaboration with the National Council on Refugee Affairs, the Office of the United Nations High Commissioner for Refugees, and other organizations, initiated the “Roll Back Xenophobia Campaign” to underline the dignity and rights of migrants, asylum seekers, and refugees in post-apartheid South Africa.192 These efforts were recognized by the Committee for the Elimination of Racial Discrimination (CERD), who commended the Commission on its “active role in eliminating the residual effects of racial discrimination.”193 Interacting with civil society organizations helped SAHRC advocate to the government to deal with this matter, and most especially, sensitized the public on these issues.194

Likewise, trokosi, a ritual and customary practice of forced labor and servitude that is prevalent in Ghana, came under the scrutiny of the Commission on Human Rights and Administrative Justice (CHRAJ). The practice entails atoning for sins by making women or children in the family engage in servitude under priests who follow fetishist beliefs. In a joint partnership with a local NGO, International Needs, Ghana, the Commission successfully released some of these victims.195

In New Zealand, the Human Rights Commission has developed a human rights community development program called Taku Manawa. The program was started in four regions of New Zealand with plans to extend to the fifth one. Community members are selected and trained in a human rights facilitator training program. The program is aimed at building human rights knowledge and expertise in local communities and training them to share knowledge and best practice.196

Taking the Office to the People

A national inquiry is considered one of the most cost-effective and efficient strategies to proactively address systemic and endemic human rights concerns.197 A national inquiry will collect evidence on a large scale and scope concerning the situation on the ground before coming to conclusions and giving recommendations to government or the parliament that will have weight and influence enough to bring about systemic change. The process may involve setting up public hearings across the country, researching secondary data, and taking testimony from victims and witnesses on the ground.

Since national inquiries are wide ranging and visible, they educate the population about the issues and the functions and powers of the NHRI, and, in turn, can build up pressure from the public to change the system responsible for the abuse. They go beyond just looking at individual violations and attempt to establish patterns and tackle underlying causes for repeated violations of rights.

NHRIs in Australia, India, Kenya, Nigeria, and several other Commonwealth countries have included civil society as a key actor in very successful large-scale inquiries. The 2010 Public Tribunal on Police Abuses held by the Nigerian Human Rights Commission in collaboration with the National Committee on Torture (NCOT) and the Network on Police Reforms (NOPRIN) – a network comprising forty-six CSOs dedicated to promoting police reforms – have been viewed as “an effective and popular strategy of public advocacy against police violations and of naming and shaming of perpetrators.”198 The tribunals were intended to give a voice to survivors and relatives of victims of police abuses – extrajudicial killings, torture, rape, sexual abuse, and other inhumane and degrading treatment. They led to dismissals and prosecutions of the perpetrators; reopened investigations into cases of extrajudicial killings and crimes; recovered bribes extorted by police personnel from victims during investigations; and inspired law enforcement policy changes.199

The expertise of civil society actors has been a feature in many national inquiries as independent experts drawn from civil society frequently constitute the panel of inquiry. As this report went to press, SUHAKAM, the Malaysian human rights commission, was conducting an inquiry into the land rights of indigenous peoples in Malaysia. The Inquiry sought to comprehensively examine the root of the problems relating to native customary rights to land and recommend appropriate actions to address this issue. It was due to have held both public consultations and public hearings as part of the inquiry in Sabah, Sarawak, and peninsular Malaysia. SUHAKAM intended to bring out an in-depth report, making recommendations to the Government on short- and long-term practical solutions. The panel of inquiry was to consist of SUHAKAM members and independent experts in the field of indigenous rights. Following the consultations, a public hearing was to be held where invitations to appear before the panel were to be extended to key witnesses, including indigenous people, government officials, community-based organizations, corporate personnel, and the media.200

Engagement at the International Level

Engagement with civil society actors often goes beyond the domestic sphere. At the international level, NHRIs have a role to play in ensuring that states meet their international human rights obligations, such as ratifying treaties and reporting on human rights compliance. In this regard, apart from producing their own independent reports, NHRIs often work with civil society to create shadow reports. Both actors occasionally contribute to each other’s submissions at international fora. They have collaborated regionally and at the UN to pursue campaigns and publicize their human rights situations.

The Universal Periodic Review has been an important catalyst for NHRI-NGO consultations and for the creation of standing or regular consultation platforms. For instance, Kenyan civil society organizations, such as the Kenyan Chapter of Article 19, recently partnered with the Kenyan National Human Rights Commission during the country’s first UPR and pushed for the implementation of recommendations made during the process.201 The Australian Human Rights Commission has also partnered with various Australian CSOs during the country’s treaty body reviews. Such partnerships maximized lobbying efforts and minimized duplication.202

Apart from making submissions, NHRIs may make the concluding observations and recommendations from treaty bodies available to CSOs as a means to promote accountability. The Mauritius Human Rights Commission proactively disseminates these recommendations and observations through its annual reports; making this information accessible to civil society, so that it can lobby for their implementation.203 Similarly, the New Zealand Human Rights Commission, in its follow-up work to the 2007 CERD examination of the country, regularly engaged and coordinated with communities and civil society, and, based on their input, provided annual updates on CERD implementation and follow up to CERD’s 2007 recommendations. The Commission’s engagement with communities and civil society ensured that their voices were heard and adequately reflected in monitoring the State’s compliance with CERD.

In 2009, after two human rights defenders were killed in Nairobi for daring to work with the UN Special Rapporteur on extrajudicial killings,204 the Kenya National Commission on Human Rights worked jointly with several civil society actors to draw the attention of the UN Human Rights Council to violence and threats faced by human rights defenders at home. The fact that the Commission lent its support to civil society provided further authority to the recommendations made by the Special Rapporteur, gave greater credibility to civil society advocacy, and a sense of safety to Kenyan defenders who advocated at the Council. It also kept the matter of accountability alive in the eyes of the international community, potentially preventing repeat reprisal killings.

5. Recommendations

Many of the people of the contemporary Commonwealth live in environments that do not reflect the Association’s most fundamental values. Twenty years after the Harare Declaration put human rights promotion and protection at the center of the Commonwealth agenda, its vision is actively pursued in some corners of the Commonwealth and actively ignored in others.

Well-functioning national human rights institutions are essential for the promotion and protection of human rights within the Commonwealth. However, the potential of an NHRI to implement its mandate to the fullest is underpinned by meaningful civil society engagement. International and Commonwealth standards demand such engagement and, beyond the domestic and international legitimacy that comes with meeting these standards, NHRIs have much to gain from their realization. Despite the obvious benefits of cooperation, the sometimes inimical environments in which both these actors work – not to mention misconceptions each harbors about the other’s role and nature – can keep engagement superficial or stifle it completely. With potentially thousands of civil society groups, engagement can be a complex and time-consuming process, and while NHRIs must be judicious in deciding with which organizations to engage, many are bound to feel excluded. Overcoming these challenges is a vitally important endeavor as human rights are protected more effectively when NHRIs and civil society work together.

There are now more than thirty NHRIs in the Commonwealth and innumerable civil society organizations and actors. Both NHRIs and civil society have their own separate operations which must be respected, but too often they work in parallel tracks or at cross purposes. While there will always be points of divergence, it is increasing the points of intersection that CHRI extols. With the following recommendations, CHRI offers means through which that end can be achieved.

Commonwealth Heads of Government

For over a decade, statements by the Commonwealth Heads of Government Meetings (CHOGM) have repeatedly recognized that civil society is a valuable partner in the Commonwealth’s work. In continuation of this trend, CHOGM should:

Reaffirm the value of civil society participation in all Commonwealth activities and specifically urge Commonwealth NHRIs to engage meaningfully with civil society.

Mandate the Human Rights Unit of the Commonwealth Secretariat (HRU) to work with the Commonwealth Forum of National Human Rights Institutions (CFNHRI) towards:

The development of a formal platform to engage with civil society at CFNHRI meetings.

Creating a formal platform for the “A” status members of CFNHRI to engage meaningfully with Commonwealth Heads of Government.

Provide additional funding to bolster the Commonwealth Secretariat’s Human Rights Unit’s capacity to involve civil society in its work on NHRIs (including its work as the Secretariat of the Commonwealth Forum and in facilitating and advising governments on the creation of new Commonwealth NHRIs).

Urge all member states to establish NHRIs which are compliant with the Paris Principles and follow best practice guidelines such as those in the Asia Pacific Forum’s (APF) Kandy Programme of Action and the Commonwealth’s National Human Rights Institutions: Best Practice.

Commonwealth Forum of National Human Rights Institutions

As a Commonwealth body, however informal, the Commonwealth Forum must operate in the spirit of past CHOGM declarations which proclaim civil society as a key partner in the Commonwealth’s activities. As a Commonwealth network, the Commonwealth Forum should:

Undertake a substantial review of its operations to pinpoint new avenues for engagement with civil society in all its work, including by:

Widely publicizing and advertising the dates, locations, and agendas of its meetings, and giving priority to updating its websites more frequently and improving documentation.

Inviting civil society to make submissions to its meetings, ensuring that this opportunity is widely advertised and that those submissions are duly shared and debated among members.

Encourage increased adherence among members to the Commonwealth publication, National Human Rights Institutions: Best Practice, in addition to the standards in the Paris Principles. Additionally, the Commonwealth Forum should explore ways of using the publication to conduct a peer review among members.

Establish a specific program to share best practices on civil society engagement within the Commonwealth and assist members to carry out activities stemming from such best practices.

International and regional networks of NHRIs

Global and regional networks of NHRIs should:

Facilitate the sharing of best practices as regards civil society engagement among members and assist them to carry out activities stemming from those best practices.

Create and nurture multiple avenues through which civil society can input into the network’s own operations and functions.

Commonwealth Secretariat and the Human Rights Unit

For the past twenty years, the Commonwealth Secretariat and its Human Rights Unit (HRU) have shown leadership in assisting Commonwealth governments to set up Paris Principle-compliant NHRIs. Keeping this trend alive, the Commonwealth Secretariat and the Human Rights Unit should:

Provide political will and practical resources and channel energy into transforming the Commonwealth Forum into a stronger network that can become a leader on civil society engagement.

Begin a dedicated program to nurture Commonwealth best practices in NHRI-civil society engagement and encourage their use in all parts of the Commonwealth.

Commonwealth Governments

Governments are responsible for the formulation of an NHRI’s mandate and can positively or negatively affect the environment within which NHRIs and civil society function. In the spirit of the Harare declaration, governments have a responsibility to respect and protect human rights. In addition to this basic tenet, and in aid of advancing NHRI-civil society engagement, Commonwealth governments should:

Ensure that civil society is fully involved in the creation of an NHRI through meaningful and substantial consultations that are broad-based, with a diverse range of civil society groups and other stakeholders from across the country. Governments should also ensure that the outcomes of such consultations are duly considered and incorporated into the design of an NHRI.

Ensure that the mandate of an NHRI includes specific and substantial avenues for effective civil society engagement.

Make the process through which members of an NHRI are appointed transparent and participatory and advertise vacancies widely.

Allow civil society to nominate members of an NHRI and include representatives of a broad cross-section of civil society groups on the panel which makes the final selection.

Ensure that the members of an NHRI reflect the country’s civil society community adequately.

Encourage, initiate, and work with multiple stakeholders, including the NHRI and civil society, to create time-bound, benchmarked National Human Rights Action Plans.

Commonwealth National Human Rights Institutions

The openness of an NHRI to civil society determines whether its engagement with civil society is substantial and substantive. In this regard, each Commonwealth NHRI should:

Whether mandated to do so by its founding legislation or not, engage with civil society in a substantial and substantive way.

Ensure that it meet the standards of civil society engagement as laid out in the Paris Principles, the higher Commonwealth standards set out in the publication National Human Rights Institutions: Best Practice, and the Kandy Programme of Action.

Aspire to “A” status at the ICC and not be content with “B” or “C” status. This would necessarily require ensuring that civil society engagement is not cosmetic.

Consult and collaborate with civil society actors in fulfilling their mandates, including in the review of legislation, expanding outreach, educating the public on human rights, reporting to UN and regional bodies, responding to human right emergencies, and undertaking national inquiries.

Appoint a Focal Point Person for Human Rights Defenders and, in doing so, recognize HRDs as a special and vulnerable category of civil society with specific needs.

Encourage and work with their governments and multiple stakeholders, including civil society, to create time-bound, benchmarked National Human Rights Action Plans.

Commonwealth Civil Society

Civil society must actively pursue and take advantage of every opportunity to work with NHRIs. In this regard, civil society should:

Advocate for a participatory, inclusive, and transparent process in the establishment of Paris Principle-compliant NHRIs in jurisdictions without them.

Proactively engage with their NHRI and use formal and informal means to improve access to the policymaking processes of the government.

Assist victims of human rights violations in accessing the NHRI and support them through the process of filing a complaint.

Facilitate their NHRI’s outreach by providing networks to spread awareness of its role and functions as a mechanism for redress.

Work with their NHRI in its role as civilian oversight mechanisms on prisons and detention areas where human rights violations are rife.

Lobby and work with their NHRI, government, and other stakeholders to develop time-bound, benchmarked National Human Rights Action Plans.

Submit reports on the performance of their NHRI to the International Coordinating Committee of National Institutions for Promotion and Protection of Human Rights.

Work closely with their NHRI in, inter alia, reporting to international and regional human rights mechanisms and implementing education programs.

Donors

Some NHRIs can receive, and are partially dependent on, funding that comes from sources besides their governments. Nearly all civil society organizations are dependent on similar funds. Donors should:

When supporting the establishment of an NHRI, ensure that the process is inclusive, transparent and implemented in consultation with a wide range of stakeholders, including civil society actors.

Support the work of civil society actors who seek to catalyze greater engagement with NHRIs in promoting and protecting human rights.

Appendix: Methodology

This report is based on both primary and secondary research. Its main source of data was a series of in-depth telephone/email interviews with members of NHRIs from twenty-eight Commonwealth countries,205 and civil society actors from twenty-seven countries. Secondary research was conducted to substantiate information where needed and to authenticate primary data.

Selection of National Human Rights Institutions

This report is based on a study of all members of the Commonwealth Forum of NHRIs (Commonwealth Forum) and every accredited Commonwealth member of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). The only exception to this is the Scottish Human Rights Commission.

As a rule, the report only examines one institution per country. The United Kingdom presented a special case as it has three NHRIs within its borders: the Great Britain Equality and Human Rights Commission, which includes Wales and Scotland within its jurisdiction; the Northern Ireland Human Rights Commission; and the Scottish Human Rights Commission. As a special case, the Northern Ireland Commission was included as a second NHRI within the UK, since Northern Ireland is not part of the jurisdiction of the Great Britain Commission. Scotland’s NHRI, however, was not included since Scotland is already under the Great Britain Commission’s jurisdiction.

The NHRIs in Bangladesh, Seychelles, and Swaziland, though not accredited by ICC, are a part of the Commonwealth Forum and were included as subjects of this report. In addition, Fiji, which is not a member of either network,, was also included in the report. The Fiji Human Rights Commission was suspended, and subsequently withdrew, from the ICC in 2007. Fiji has been fully suspended from the Commonwealth since 2009, yet has been included as an example of an NHRI that has lost public legitimacy.

There are, however, numerous coordinating networks for national human rights commissions, especially and ombudsmen, that are not discussed at length or at all in this report. Only selected networks that made significant efforts to engage with civil society or produced standards or best practices in that regard were included.

Selection of Civil Society Organizations

The civil society organizations selected for the report were those that engaged with their NHRI and had the experience and capacity to critique it. CHRI’s existing network of contacts was used to select civil society actors. In countries where CHRI had no suitable contact, research and advice from contacts in the region were used to find suitable interviewees. In order to give appropriate weight to both small and large countries in the Commonwealth, an average of two CSOs was taken for each country.

Data Collection and Analysis

Interviews were conducted on the basis of a set of separate but similar questionnaires for NHRIs and civil society. The questionnaires sought to examine the scope of NHRI-CSO engagement in the domestic and international arenas. The data was transcribed and analyzed by the research team for unique practices, commonalities, and challenges in making NHRI-CSO engagement a reality. The data was further supplemented with secondary data collected from a range of sources: local and international civil society reports; NHRI annual reports; NHRI mandates; communiqués from international fora; media reports and articles; and additional website research.

Limitations in Scope of Study

This report is a qualitative study of NHRI-CSO engagement in the Commonwealth. One of the major challenges while preparing it was in identifying civil society actors who could comprehensively comment on their NHRIs. Due to the varying geographic and socio-political spectrum of the countries in the Commonwealth, the study acknowledges that an average of two civil society organizations per country may not give a realistic picture of countries that have a broad and diverse civil society presence. Bearing this in mind, the study only attempts to map best practices and trends in the Commonwealth where NHRI-CSO engagement has occurred, many of which can be replicated or serve as caution for others.

Notes

1 The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international non-governmental organization, mandated to ensure the practical realization of human rights in the countries of the Commonwealth. In 1987, several Commonwealth professional associations founded CHRI. They believed that while the Commonwealth provided member countries a shared set of values and legal principles from which to work and provided a forum within which to promote human rights, there was little focus on the issues of human rights within the Commonwealth.

CHRI’s objectives are to promote awareness of and adherence to the Commonwealth Harare Principles, the Universal Declaration of Human Rights, and other internationally recognized human rights instruments, as well as domestic instruments supporting human rights in Commonwealth member states.

Through its reports and periodic investigations, CHRI continually draws attention to progress and setbacks to human rights in Commonwealth countries. In advocating for approaches and measures to prevent human rights abuses, CHRI addresses the Commonwealth Secretariat, member governments, and civil society associations. Through its public education programs, policy dialogues, comparative research, advocacy, and networking, CHRI’s approach throughout is to act as a catalyst around its priority issues.

The nature of CHRI’s sponsoring organizations allows for a national presence and an international network. These professionals can steer public policy by incorporating human rights norms into their own work and act as a conduit to disseminate human rights information, standards, and practices. These groups also bring local knowledge, can access policy-makers, highlight issues, and act in concert to promote human rights.

CHRI is based in New Delhi, India, and has offices in London, UK, and Accra, Ghana.

Copyright 2011, Commonwealth Human Rights Initiative.

2 Duxbury, A (1997), “Rejuvenating the Commonwealth: the Human Rights Remedy,” 46 International and Comparative Law Quarterly 344, p. 355.

4 CHRI recently released the third report in its Easier Said Than Done series. The report compares pre-election pledges made by Commonwealth countries at the Human Rights Council, with each country’s actual performance at the UN and domestic levels. The report concludes that all Commonwealth countries failed to fulfill the human rights pledges they made before their election to the Council. The report can be accessed at http://www.humanrightsinitiative.org/publications/hradvocacy/ESTD_2010/Full_report_with_Annexure_III.pdf.

10 UN General Assembly (1993), Vienna Declaration and Program of Action, part I, paragraph 36.

11 Please refer to the methodology appendix of this report for an explanation of which NHRIs were included for analysis in this report. The years in parentheses refer to the year in which each NHRI started operating.

12 See the box, above, for the founding years of NHRIs in the Commonwealth.

18 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (December 2010), “Chart of the status of national institutions accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights”: Geneva.

19 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (2010), Report and Recommendations of the Session of the Sub-Committee on Accreditation, Geneva, 29 March -1 April 2010

20 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (date unknown), Information Brochure: Geneva.

21 Byrnes, A, et al (2008), Joining the Club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the Advancement of Human Rights Protection in the Region:University of South Wales, University of New South Wales, Faculty of Law Research Series, p. 2.

22 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (2010), Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA),Geneva, 29 March -1 April 2010

24 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (2009), Sub-Committee on Accreditation: General Observations: Geneva, Article 1.5, p. 1.

25 International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (2009), Template: Statement of Compliance with the Paris Principles, Section 8.

26 All India Network of NGOs and Individuals Working with NHRIs (2011), NGO Parallel Report on the Compliance of the Paris Principles of the National Human Rights Commission of India.

28 According to Section 4 of the ICC Statute: “The ICC may liaise with other human rights institutions including the International Ombudsman Institute and non-governmental organizations. The ICC Bureau may decide to grant such organizations observer status at any meetings or workshops of the ICC or the ICC Bureau.” International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights (2010), Report and Recommendations of the Session of the Sub-Committee on Accreditation, Geneva, 29 March -1 April 2010

29 Email correspondence with Katharina Rose, Geneva Representative, International Coordinating Committee for National Institutions for the Promotion and Protection of Human Rights, on 16 August 2011.

38 Email correspondence in August 2011 with a civil society representative who has interacted with the APF.

39 “ANNI comprises some of the largest and best resourced NGOs in the region: Forum-Asia (Bangkok), People’s Watch (India), SUARAM (Malaysia), Imparsial (Indonesia). It includes civil society representatives from states with established NHRIs and from states where civil society is agitating for the establishment of NHRIs (Taiwan, Cambodia and Japan).” Renshaw, C. (2010), The Role of Networks in the Implementation of Human Rights in the Asia Pacific Region.

107 International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (2007), Report and Recommendations of the Sub-Committee on Accreditation, Geneva, 19th Session: 22 March 2007

116 Telephone interview with an NHRI representative in Australia on 25 November 2010.

117 Australians for Native Title and Reconciliation (2011), Close the Gap

118 Australian government (2011), Closing the Gap: Prime Minister’s Report

119 Telephone interview with a civil society representative from Kenya on 3 November 2010.

120 Interview with a civil society representative from India on 25 January 2011.

121 The Paris Principles contain key requirements related to the composition and guarantees of independence and pluralism (See Paris Principles B 1 a). They require that the composition of a NHRI and the appointment of its members shall a) be established by a procedure which ensures representation of all social forces including civil society, and b) enable effective cooperation with, and/or representation of, non-governmental organizations. The Sub Committee on Accreditation in its General Observation 2.1. entitled “Ensuring Pluralism” has clarified that “The Sub Committee notes there are diverse models of ensuring the requirement of pluralism set out in the Paris Principles. However, the Sub Committee emphasizes the importance of national institutions to maintain consistent relationships with civil society and notes that this will be taken into consideration in the assessment of accreditation applications”; it also notes that there are different ways in which pluralism may be achieved (see GO 2.1). In its General Observation 2.2 entitled “Selection and appointment of the governing body,” the SCA notes further “the critical importance of the selection and appointment process of the governing body in ensuring the pluralism and independence of the national institution” and emphasizes the need for a transparent and inclusive process, including with the involvement of civil society.

127 Ibid. The Sub-Committee of Accreditation of the ICC has recommended during its review of the National Human Rights Commission of India in 2006 and in 2011 that the Protection of Human Rights Act 1993 be suitably amended. See the Letter from Vladlen Stefanov, Chief, National Institutions and Regional Mechanisms Section, OHCHR, to Justice K. G. Balakrishnan, Chair, National Human Rights Commission, with ICC/SCA recommendations of May 2011 as attachment, 8 June 2011 and the International Coordinating Committee for National Institutions for the promotion and protection of human rights (2006) Report and Recommendations of the Sub-Committee on Accreditation: Geneva

138 E-mail interview with a civil society representative from Rwanda on 20 January 2011.

139 Telephone interview with a representative of the National Human Rights Commission of Bangladesh on 27 October 2010. It should be noted that this facility, in the hands of a dysfunctional NHRI, may have detrimental effects and could impinge on the accuracy of complaints.

140 Telephone interview with a representative of the Australian Human Rights Commission on 25 November 2010.

141 Email interview with a representative of the Mauritius Human Rights Commission on 21 April 2011.

205 Despite repeated efforts we were unable to get in touch with five NHRIs. The Fiji Human Rights Commission refused, in writing, to be interviewed for our report. Although attempts were made to gain responses from CSOs in all Commonwealth countries that have established NHRIs, civil society actors from only twenty-seven countries responded to our questionnaire.